https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11324

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ISIOLO** **CRIMINAL APPEAL NO. E019 OF 2025** **REPUBLIC .............................................................................. APPELLANT** **VERSUS** **DIWANI TIMASI PARKUSAA .......................................RESPONDENT** *( Being an Appeal against the Judgment in Isiolo Chief Magistarte’s court criminal case No. E174 of 2024 delivered on 31st October 2025 by Hon. Maureen Odhiambo(SRM)* **JUDGMENT** 1. The Respondent was charged with the offence of threatening to kill contrary to ***Section 223(1) of the Penal Code***. 2. The particulars of the offence were that on the 21st day of March 2023 at around 08:30hrs at Olng’arua Village in Leparua Location of Isiolo North Sub-County within Isiolo County, without lawful excuse uttered the words “**kama atakuja huku akae akijua nitamuwa, hii shule nichome na hi barabara nifunge”** meaning if he comes let him know that I will kill him, burn the school and close this road threatening to kill Lipan Kitonga Mbaatia. 3. The matter went through a full trial and at the conclusion, the trial Court acquitted the Respondent. 4. Being aggrieved by the acquittal, the Appellant moved this Court on Appeal. **Petition of Appeal** 1. The Appellant has listed the following grounds: 2. *That the Learned Trial Magistrate erred in law and fact in acquitting the accused/Respondent despite the overwhelming evidence against him that was proved to the required standard of law.* 3. *That the Learned Trial Magistrate erred in law and fact in basing her decision on extraneous matters contrary to law and failing to consider the elements required to probe the charges.* 4. *That the Learned Trial Magistrate erred in law and fact in over reliance in the Accused/Respondents weak defense which was not warranted in the circumstances of the case.* 5. *That the Trial Magistrate erred in law and fact in failing to find that the prosecution had discharged its burden and proved the case against the Accused/Respondent beyond reasonable doubt.* 6. The Appeal proceeded by way of Written Submissions. **Appellants Submissions** 1. The Appellant submits that the evidence of PW 2 which was crucial was corroborated by the Respondent’s subsequent actions which included blocking access road to school; that the blocking of the road speak to his intended actions from his earlier threats to the Complainant. 2. It is further submitted that the prosecution established that the Respondent uttered the words to PW 2; that the words were directed to the Complainant, and that it was to the effect that he would kill the said Complainant. That all the elements were established as per **Kimaru J’s** (as he then was) decision in ***Martin Nganga Kamu vs. Republic [2020] eKLR.*** 3. The Appellant further submits that the defence of *Alibi,* provided during the defence hearing, did not shake the prosecution’s case. **Respondent’s Submissions** 1. It is the Respondent’s Submissions that the Appellant did not prove all the elements as set out in the case of ***Martin Nganga vs. Republic (Supra).*** It isfurther stated that there was no evidence that PW2 was proficient in Maasai language in which the Respondent allegedly uttered the words. 2. It is further submitted that the Prosecution Witnesses contradicted themselves and hence the evidence fell short of the threshold of proof. It is also stated that there was no evidence that the complainant perceived that he was under threat of loosing his life. 3. The Respondent further contends that the context must demonstrate a purpose and ability to carry out a threat which would cause an ordinary person to fear for his safety. 4. It is argued that the motive behind the charge was a land dispute which apparently has led to many disputes before court. **Analysis and determination** 1. This is a first Appeal, and this Court being the first Appellate Court is mandated to review the evidence, re-evaluate and arrive at its own findings, but while making allowance for the fact that it never heard the witnesses first-hand or observe their demeanor. (see: ***Okeno vs Republic (1972) EA 32).*** 2. Having considered the evidence tendered, the grounds of Appeal and respective submissions, the only issue I have identified for determination is whether the prosecution proved the subject offence beyond reasonable doubt. 3. The offence of threatening to kill is founded on ***Section 223(1) of the Penal Code***. The Section provides as follows: - ***Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years.”*** 4. It is now settled that the ingredients of the offence are:-A person : “*Without lawful excuse utters; Or directly or indirectly causes any person to receive a threat” and “The threat may be in writing or verbal, and It must be a threat to kill any person”.( see****:*** [***Phenias Njeru Koru v Republic [2015] KEHC 104 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/104/eng%402015-12-29)***.*** 5. In the present case, according to the charge sheet, the words uttered and recorded in Kiswahili were as follows: “**kama Atakuja huku akae akijua nitamuua, hii shule nichome na hii barabara nufunge”.** 6. The witness who heard the uttered words was PW2. He told the Court that he was the caretaker of the Complainant’s school and that the Respondent arrived in school and uttered the aforesaid words. PW2 also told the Court that he was alone when those words were uttered. PW1, the Complainant, told the Court that it was PW2 and a Mr. Moses, who reported to him about the utterances. 7. However, the report by Moses was communicated by PW 2 and therefore has no evidential value as the “report” had taken the nature of hearsay evidence and hence inadmissible. Further PW1’s evidence of what Moses told him did not contain the exact words, that the respondent was said to have uttered. 8. In regard to the evidence of PW1, he told the Court that the utterances were made in Maasai language. The words recorded on the charge sheet are however in Kiswahili and there was no effort made to ascertain whether there was an accurate translation from Maasai language to Kiswahili. The trial court’s observation in this regard was therefore correct. In this respect, I am persuaded by the decision of ***Justice Matheka T. in Mutike vs. Republic [2024] KEHC 17226 (KLR),*** where she faulted the fact that the particulars of charge sheet did not state the language that the words were uttered, and who actually supplied the meaning or translation of the words. 9. In the present case, not only was there no effort to provide particulars of translation, but the prosecution did not lead any evidence during PW2’s evidence- in- chief to marry the words as spoken in Masai and as recorded in the charge sheet. The fact that the words were uttered in Maasai language emerged only in Cross-examination. Thus, until the 2nd prosecution testified, and made the disclosure at cross- examination, one would have been mistaken to think that the words were uttered in Kiswahili. 10. Further PW 1 stated: “The *words were said in Maasai language. He said we shall close the road, burn school and kill Lipan”.* On the other hand the words in the Charge Sheet were *“ kama atakuja huku akae akijua nitamuua, hii shule nichome ,na hii barabara nifunge”* (Loosely translated mean : *“ if he comes here, let him know I will kill, I will burn this School and close this road”).* The court observes that even the words as translated by the witness is not a reflection of the correct translation from the utterances made in Kiswahili. 11. The meaning of the uttered words are critical, as the word(s )are what the court analyses to ascertain whether the words constituted a threat to life or make the complainant perceive that his or her life was under threat. And the standard of proof as always, is beyond reasonable doubt. 12. In the face of the above uncertainties, it is the finding of this Court that the words uttered were not proved. 13. On the 2nd issue, context matters. From the evidence of both the Prosecution and the defence, it is common ground that there had been earlier threats exchanged between the Complainant and the Respondent being (PW1’s testimony); that some of the threats ended in criminal prosecution of Respondent; and according to DW 1 the threats related to an unresolved land dispute. 14. It further emerged that the dispute did not just involved the complainant and the respondent, but the entire family. I have referred to ‘family’ because, according to DW2 the Complainant, the Chief (PW3) the Respondent and DW 2 himself, were all related. Against the above stated pre- existing feuds, I agree with the observations of the trial court that they were more indicative of a fabrication as opposed to the motive for the utterances. 15. Further it did not come out from the testimony of the complainant that there was a reasonable apprehension of losing his life. The evidence of PW 1 fell short, especially against the pre-existing feuds. 16. On the reported subsequent actions attributed to the Respondent, if the words in the Charge Sheet was established to have been accurate representation of what was uttered in Maasai language, then one could rightly conclude that the burning of the school , and blocking of the road, could have indeed made the Complainant fear for his life. However, this circumstantial evidence did not connect the Respondent to the burning of the School or blockage of the access road. DW2 admitted that he was the one who blocked the road. Thus there was no evidence therefore that the Respondent was the one who subsequently blocked the road or burnt the school. 17. I am not satisfied that the prosecution met the threshold of proof in Criminal Cases, which is beyond reasonable doubt. For emphasis on the threshold of proof I rely on the English case of ***Woolmington vs. DPP [1935] A.C 462 pp 481*** as cited by the high court [***Melvin Muendo Muema v Republic [2019] KEHC 5458 (KLR )***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/5458/eng%402019-07-25)where the court held : ***“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’*** 1. Further in [***Elizabeth Waithiegeni Gatimu v Republic [2015] KEHC 1136 (KLR***)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/1136/eng%402015-11-27) Justice Mativo ( as he then was ) held: *“To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right…………. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge”* 1. In the end am not persuaded that the prosecution’s case was proved beyond reasonable doubt, and consequently the benefit of doubt must go to the Respondent. The Appeal fails. It is hereby dismissed. Dated, Signed and delivered at Isiolo, this 23rd day of July, 2026 S. Chirchir Judge In the presence of:- Roba Katelo -Court Assistant. Mr. Majale- for the Appellant Mr. Lekoona for the Respondent